Lowenkron: Number of Countries Fear a Tougher UN Human Rights Body

The State Department official in charge of addressing human rights issues, Assistant Secretary Barry Lowenkron, tells cfr.org a number of states fear the proposed UN Human Rights Council, which will seek to enforce international human rights law. As the council debate continues, Washington has also issued its annual report on human rights performance, drawing charges from a number of states of U.S. hypocrisy.

To help readers better understand the nuances of foreign policy, CFR staff writers and Consulting Editor Bernard Gwertzman conduct in-depth interviews with a wide range of international experts, as well as newsmakers.

The United States is in the middle of its high season on human rights issues. It issued in early March its annual report on human rights performance by 196 countries, drawing charges from a number of states of U.S. hypocrisy. The United States is also engaged in a difficult debate over reforming the UN Human Rights Commission, due to begin its final meeting this month.

The State Department official in charge of addressing human rights issues, Assistant Secretary Barry Lowenkron, tells cfr.org Washington is insisting that membership in a proposed Human Rights Council be decided by a two-thirds vote of General Assembly members, not a simple majority as currently proposed. He says this is the best way to assure rights-abusing states do not routinely gain membership. Lowenkron adds that a number of states fear having a rights body that will seek to enforce human rights law.

Washington has a steady dialogue on rights issues with countries like China and Saudi Arabia, which came under severe criticism in the State Department report. The basis of this dialogue for the Bush administration, and a main theme of the report, Lowenkron says, is that democracies and democratization provide more fertile ground for protection of human rights.

One of the key themes of the report is that democracies and democratizing countries provide a better environment for improving protection of human rights. And yet it’s also very frank about challenges. Is it a case where perhaps even more important than elections, is first strengthening rule of law institutions in countries?

We view it as needing three critical components. We talk about the component of free elections, but it’s also what goes into the free elections. Is it a level playing field? Is there a right of assembly? Do people have equal access to the media? Is the election free of violence or intimidation? But that’s only one-third of it. The second part is, is there space for civil society to grow? Civil society, NGOs [nongovernmental organizations] can help sink the roots that can help support what you’re trying to achieve at the ballot box. And the third element is exactly what you highlighted. We call it the issue of governance. What happens the day after an election is just as important as what happens on election day.

Should [the focus] be elections first, then governance?

I don’t see that as either or. For years this was one issue [that] was a source of disagreement between us and our allies in Europe because the Europeans would say what you really need to do is focus on civil society and all these groups: "You Americans are always impatient, you’re always talking about the ballot box." And we would say, "Yes, but if we do it your way we’re talking waiting decades for these roots to finally [grow]." It’s both. An example the Secretary [of State Condoleezza Rice] has pointed out is Egypt. There is a good [Egyptian] economic reform team in Egypt to reform the Egyptian economy, but at the same time the secretary has made it clear we need to allow for more robust civil society and for political space for moderate voices in Egypt. The [jailed opposition presidential candidate] Ayman Nour case is [an example of] where this is a problem we’ve had with the Egyptian government.

There are a number of people in Congress and in think tanks saying a country like Egypt, which gets an enormous amount of foreign aid from the United States, should have more linkage [between aid] and real concrete reforms.

This issue of linkage with human rights is not a new one and I remember when I was here in the State Department in the 1980s on the policy planning staff. I would ask myself, "Is this going to bedevil Secretary [George] Shultz the same way it bedeviled Secretary [Cyrus] Vance and Secretary [Henry] Kissinger?" And [Schultz’s] answer at the time, which I thought was very, very good, was you pursue them at the same time. He had this four-part agenda, [which] at that time, was arms control, bilateral relations, ameliorating or ending regional conflicts, but also human rights. And so, when you look at the case of Egypt, for example, Egypt plays a dominant role in the Middle East; we obviously are working with the Egyptians on the Israeli-Palestinian front. We have a number of issues that we are pursuing with Egypt, but I also would say we don’t shy away from difficult issues with the Egyptians, democracy-promotion and human rights.

China comes in for some very strong criticism in the report. How do you establish a dialogue where, in essence, you are trying to tell them to ease up on the reins of power so that other groups can challenge them?

Well, the president, the secretary, and the deputy secretary [Robert Zoellick] have spoken out on this. The deputy has talked about China as a responsible stakeholder in the international system, which also means now China is more integrated into international institutions. We have to see not only China being at the table but what can they do. It also means being a stakeholder in terms of how China is going to govern internally. Our view is, if you want to keep the economic progress going, if you want to deal with the societal ferment that’s in China, you’re going to have to find ways to open up to reform. And there are issues of reform that [deal with] rights of the accused, rights of defense attorneys, it can be the whole judicial law. It can be an issue of whether you want to move from the village level up higher to the town level in terms of elections, and who gets to run in them? A lot of things are happening in China, and I think the Chinese leadership itself recognizes that while their economy is booming, they do have these internal problems. And unless they address them through some sort of reform, some sort of change, they’re not going to be able to deliver those basic goods to their people.

On the issue of NGOs, the report goes into some detail about [countries] that see NGOs as usurpers of power. How do you counter this kind of backlash against NGOs?

Let me focus on the Russia case. When the bill [placing constraints on foreign and local NGOs] was introduced into the Duma [Russian parliament] late last year and the president and the secretary raised it with President [Vladimir] Putin and Foreign Minister [Sergei] Lavrov, the Russian reaction was, "Well, what we’re doing is not much different from what you do." We quietly went back and did a scrub of our own laws and that was not the case. We conveyed this to the Russians and we had quiet dialogue with them as [the bill] went through its second reading and its third reading, and our hope was that if there was going to be a law that the end result would be a law that was not going to constrain the work of NGOs.

I have to say, we have the law, it was signed by President Putin in early January just as soon as I got to Russia, and it raises some serious concerns. President Putin acknowledged at the end of January that NGOs play a vital role in society, but then he said that, at the same time, "We cannot allow foreign puppeteers." We know what drives this: What drives this is a misperception about what happened in Ukraine [during the Orange Revolution in 2004]. There’s this notion that the United States found a clever way [to influence] the game of geopolitics. Instead of arms, what they have are NGOs and they direct them to infringe on Russia’s neighborhood and ultimately on Russia itself. And so we push [back] by saying we’re going to continue to support these NGOs, we’re going to still highlight their plight. Congress is concerned about this and there will likely be hearings on NGOs, there may be some NGO legislation, and again this is popping up all over the world.

[When] you go to the page [of the State Department human rights report] on Saudi Arabia this year and see this huge list—no religious freedom, no freedom of assembly, discrimination against women—where do you start when you engage the Saudis? Can you give some insight into how, practically, you go forward with the Saudis?

I think one looks at it above the issue of the working group [on U.S.-Saudi strategic dialogue] that’s going to happen [this] week, with the president and the secretary having conversations with the Saudis about some of the steps they’re taking, some of the municipal elections. There is no cookie-cutter approach in terms of trying to advance these reforms, and we know some countries will move faster than other countries. I think it’s important we have this dialogue and it’s important that we can sit down and quietly say, "OK, how are you framing the work of your municipal elections, how are you developing your own NGOs?"

The report thoroughly went over what’s happening in Iraq, balancing out some of the clear democratic progress with concerns. There’s a lot of focus at this point on security forces and that gets mentioned in the report as well.

It’s very hard to build anything in any country at any time when you’re facing an insurgency. A reporter asked me the other day, "Aren’t you judging Iraq by lower standards?" I said, "No, we’re using the same standards." But we’re [operating in] a different climate, which is first of all the deadly insurgency. The second dynamic is that these institutions are weak. The judiciary is weak. We have some oversight bodies but they’re weak. It’s a capacity-building issue and, as part of that weakness, you also have an issue with a lack of transparency. It’s in that context that you see some of the abuses. Even when you look at some of the abuses, which the report highlights, not in the military but in the police, there are still areas where the insurgents put on police uniforms and then murder Iraqis as well. This is not to say there haven’t been explicit cases of abuse by the police as well. The secret prison that was uncovered at the end of last year, Prime Minister [Ibrahim al-] Jaafari launched an investigation to try to close these and others down. So that’s the second story, which is a lack of capacity and the weakness of these institutions. The third story is that most Iraqis are still trying to work all this out through a democratic process.

Switching over to the question of the UN, the Human Rights Council as proposed by [General Assembly President] Jan Eliasson is not acceptable to the United States. Is the issue of a two-thirds majority vote [for members by the General Assembly] a red line for the U.S. at this point that needs to be in any resolution emerging on this issue?

The short answer is yes. The longer answer is that we have spent a great deal of time, going back to when the high-level panel was created to give recommendations to [UN] Secretary-General [Kofi] Annan on reform of the UN to try to get this right. What do I mean by getting it right? Having a new Human Rights Council that is effective and was credible. It strains credulity to have a Human Rights Council in which the most egregious violators of human rights consistently get on [the council] and that’s why we felt very strongly we needed to have the two-thirds requirement. There are many NGOs that have told us, "We’re disappointed, but let’s make a go of it." There are others—like [human rights watchdog] Freedom House—that said this does not reflect what needs to be done in the UN context. And many of our allies have quietly said, "Look, this is falling short, so the question is what do you do with it now?" Above all, there’s this question of, can the UN effectively tackle the human rights issues?

Can one say there are international norms that have universal resonance anymore, or has there been a divide emerging?

I put the divide in the world between those countries that have rule of law and those countries that have rule by law. You can go into any society that’s not democratic and what they’ll do is they’ll sit you down and in the course of a pleasant discussion start citing chapter and verse of their constitution. But that’s rule by law and not rule of law. I think there are a number of countries that fear actually having a Human Rights Council that says, "No, it really needs to be rule of law."

Will the U.S. send a delegation to Geneva for the possibly last commission?

What we have now is a discussion. When I say "we," it’s not just internal, but also up in New York in terms of what would the next Geneva meeting look like as well. So at this point, it’s still in flux.

This is now almost thirty years into the exercise of putting out this human rights report. How do you reconcile the issue of the U.S. going out and rating countries on human rights norms while itself being accused of not adhering to what are seen as international norms on prison detainees?

Let me answer that in several ways. First, this report was never intended to be about the United States and U.S. activities. Frankly, if the United States government were to report on its own activities, wouldn’t that be better for other countries to do or for NGOs [to do]? And they do that. We have Human Rights Watch that wrote a report on us. So this is really about other countries. Secondly, we do report on those specific issues in the context of our obligations on the Convention Against Torture, the CAT, and also the International Covenant on the Protection of Civil and Political Rights, ICCPR. I’m going to be going to Geneva later this year with our State Department legal counselor John Bellinger to defend our reports and answer questions in Geneva.

Third, it’s a legitimate question. I’ve had a number of discussions with foreign officials, also with journalists, and my answer is this: We can debate where Guantanamo falls in the context of international law, we do not need to spend a millisecond debating Abu Ghraib. It’s inexcusable and indefensible and we can talk about detainees’ issues. What we should also talk about is the strength that I see we have and other democracies have. We have self-corrective mechanisms. Think about it: We have an independent, aggressive press that brings to light abuses and raises concerns, issues, and questions. We have an obviously independent Congress, the voice of the American people who will legislate. The biggest example I’ve used is the McCain amendment prohibiting "cruel, inhuman, or degrading" treatment of any detainee in U.S. custody anywhere]. We have the courts all the way up to the Supreme Court that will lay out the rights of detainees and we have the executive branch itself that is constantly debating and deciding on what we call mid-course corrections. This is all part of the whole. This is how democracies deal with this.